Citation Nr: 0810635
Decision Date: 03/31/08 Archive Date: 04/09/08
DOCKET NO. 02-11 271 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Boise,
Idaho
THE ISSUE
Whether new and material evidence has been received to reopen
a claim of service connection for tinnitus.
REPRESENTATION
Appellant represented by: Virginia A. Girard-Brady
ATTORNEY FOR THE BOARD
M. Sorisio, Associate Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
April 1974 to April 1976. The case is before the Board of
Veterans' Appeals (Board) on remand from the United States
Court of Appeals for Veterans Claims (Court). This matter
was originally before the Board on appeal from a May 2001
rating decision of the Boise, Idaho Department of Veterans
Affairs (VA) Regional Office (RO). In a decision issued in
January 2005, the Board denied the veteran's appeal seeking
to reopen a claim of service connection for tinnitus. He
appealed that decision to the Court. In January 2007, the
Court issued an order that vacated the January 2005 Board
decision and remanded the matter on appeal for readjudication
consistent with the instructions outlined in a January 2007
Joint Motion by the parties. In August 2007, the Board
remanded the case to comply with the mandates of the Court
order and Joint Motion.
The Veterans Law Judge who issued the January 2005 Board
decision is no longer with the Board, and the case has been
reassigned to the undersigned.
FINDINGS OF FACT
1. An unappealed rating decision in July 2000 declined to
reopen a claim of service connection for tinnitus; the claim
was originally denied (in January 1984) essentially on the
basis that such disability was not manifested in service or
related to service.
2. Evidence received since the July 2000 rating decision is
new, but either duplicates or is cumulative to evidence then
of record, or is not material as to whether current tinnitus
is related to noise exposure in service; it is not so
significant that it must be considered in order to fairly
decide the merits of the claim.
CONCLUSION OF LAW
Evidence received since the July 2000 rating decision is not
new and material and the claim of service connection for
tinnitus may not be reopened. 38 U.S.C.A. § 5108 (West
2002); 38 C.F.R. § 3.156 (effective prior to August 29,
2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A. Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA describes VA's duty to notify and assist claimants
in substantiating a claim for VA benefits. 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326(a). The VCAA applies to the
instant claim.
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper VCAA notice must inform the claimant of
any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the claimant is expected to provide; and
(4) must ask the claimant to provide any evidence in her or
his possession that pertains to the claim in accordance with
38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
The veteran was advised of VA's duties to notify and assist
in the development of the claim. While he did not receive
complete notice prior to the initial rating decision, an
August 2007 letter issued in response to remands by the Court
and the Board provided certain essential notice prior to the
readjudication of his claim. Mayfield v. Nicholson, 444 F.3d
1328 (Fed. Cir. 2006). This letter instructed the appellant
that since his claim of service connection for tinnitus had
been subject to a previous final denial, in order for him to
reopen his claim, he needed to submit new and material
evidence. Kent v Nicholson, 20 Vet. App. 1 (2006). The
August 2007 letter explained what kind of evidence would be
new and material and provided him with the regulatory
definition of new and material evidence that was in effect
when he filed his claim. It also informed him of the basis
for the previous denial and what the evidence must show to
substantiate a claim of service connection for tinnitus. Id.
This letter also notified him of the evidence and/or
information necessary to establish a disability rating or the
effective date of an award. See Dingess/Hartman v.
Nicholson, 19 Vet. App. 473, 491 (2006), aff'd, Hartman v.
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The veteran was
not prejudiced by the untimeliness of the notice; subsequent
to issuance of complete notice and once the veteran and his
attorney responded and further development was completed,
November 2007 and January 2008 supplemental statements of the
case (SSOC) readjudicated the matter. 38 U.S.C.A. § 7105;
see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006)
(finding that a timing defect can be cured by notice followed
by readjudication of the claim by the Agency of Original
Jurisdiction).
The veteran's pertinent treatment records have been secured.
The RO arranged for VA examinations in April 2001 and April
2002. The appellant has not identified any pertinent
evidence that remains outstanding and in a November 2007
statement indicated that he had no more information or
evidence to submit. Thus, VA's duty to assist is also met.
Accordingly, the Board will address the merits of the claim.
B. Legal Criteria, Factual Background, and Analysis
As noted above, the veteran's claim was last finally denied
by the RO in July 2000. He was properly notified of that
decision and of his appellate rights, and he did not appeal
it. Accordingly, it is final. 38 U.S.C.A. § 7105.
Generally, when a claim is disallowed, it may not be reopened
and allowed, and a claim based on the same factual basis may
not be considered. 38 U.S.C.A. § 7105(c). However, under
38 U.S.C.A. § 5108, "[I]f new and material evidence is
presented or secured with respect to a claim which has been
disallowed, the Secretary shall reopen the claim and review
the former disposition of the claim." "New and material
evidence" means evidence not previously submitted to agency
decisionmakers which bears "directly and substantially"
upon the specific matter under consideration. Such evidence
must be neither cumulative nor redundant, and, by itself or
in connection with evidence previously assembled, such
evidence must be "so significant that it must be considered
in order to fairly decide the merits of the claim."
38 C.F.R. § 3.156(a); see Hodge v. West, 155 F. 3d 1356 (Fed.
Cir. 1998). [An amended version of 38 C.F.R. § 3.156(a) is
effective only for claims filed on or after August 29, 2001.
Here, the petition to reopen was filed before that date.
Hence, the new 38 C.F.R. § 3.156(a) does not apply.]
When determining whether a claim should be reopened, the
credibility of the newly submitted evidence is to be
presumed. Justus v. Principi, 3 Vet. App. 510 (1992).
Evidence may be considered new and material if it contributes
"to a more complete picture of the circumstances surrounding
the origin of a veteran's injury or disability, even where it
will not eventually convince the Board to alter its ratings
decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir.
1998).
Service connection may be established for disability due to
disease or injury that was incurred in or aggravated by
active service. 38 U.S.C.A. §§ 1110, 1131. In order to
establish service connection for a claimed disability, there
must be: (1) medical evidence of a current disability; (2)
medical, or in certain circumstances, lay evidence of in-
service incurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between the claimed in-
service disease or injury and the current disability.
Hickson v. West, 12 Vet. App. 247, 253 (1999). The
determination as to whether these requirements are met is
based on an analysis of all the evidence of record and an
evaluation of its credibility and probative value. Baldwin
v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).
Evidence of record in July 2000 included the veteran's
service medical records and separation examination report
which are silent for complaints or findings of tinnitus. The
veteran's DD Form 214 reflects that his military occupational
specialty was voice radio operator.
On November 1983 VA ear, nose, and throat examination, the
veteran complained of hearing loss and constant ringing in
his ears. The diagnoses were constant tinnitus aurium and
bilateral sensorineural hearing loss. An unappealed January
1984 rating decision denied service connection for tinnitus,
finding that such disability was not noted in (and by
inference was unrelated to) the veteran's service.
In June 2000, the veteran submitted a claim of service
connection for constant ringing in his ears. He stated that
at his service separation examination he was told he had
tinnitus. A report of audiological testing by his employer
contains no mention of tinnitus complaints.
Evidence added to the record since July 2000 includes June
2000 to October 2007 VA treatment records that consistently
report subjective tinnitus as one of the veteran's medical
conditions.
A November 2000 VA audiology consultation report shows the
veteran reported a history of tinnitus and in service and
post-service noise exposure.
On April 2001 VA examination, the veteran described a
constant bilateral ringing that was worse on the right with a
gradual onset 15 to 20 years earlier. He reported no history
of ear pathology. He provided a history of noise exposure as
a result of construction work "all my life," working in a
sugar factory off and on, and hunting. In service he had
worked as a voice radio teletype operator. The examiner
stated that there was no evidence of record to support the
onset of tinnitus during service and that it was less likely
than not that the veteran's tinnitus was related to noise
exposure in service. The examiner noted that the veteran's
first documented complaint of tinnitus was in 1983, and that
he had a history of occupational noise exposure after
service.
On April 2002 VA examination, the veteran reported he had a
constant bilateral high-pitched tinnitus that started in the
1980s. He stated that he had been exposed to excessive noise
in service working around teletypes, voice radios, and M-16s.
The examiner noted that he had noise exposure and hearing
loss prior to entering service and that there was no evidence
in his service records documenting that he had tinnitus
during service. It was noted that the veteran had additional
noise exposure after service, but prior to his 1983 VA
examination. The examiner concluded that there was not
enough evidence available to substantiate the veteran's
claims of having tinnitus in service and that it was less
likely than not that the veteran's tinnitus was caused by
excessive noise while in the military.
An undated letter from the veteran's sister states that the
veteran did not have problems with his hearing before
service, but that he had difficulty hearing after service.
He would often ask people to repeat themselves.
A February 2005 statement from the veteran reports that he
did not think there would be any remarks about tinnitus in
his service medical records because there was no treatment
for tinnitus at that time. He stated he complained about
tinnitus during service, but was told just to live with it.
He reported that in his post-service jobs, he always wore
hearing protection and that in his construction job he was
away from immediate noise producing areas and the noise he
was exposed to there was no greater than what would be
encountered in normal everyday life.
VA treatment records and VA examination reports are "new"
in that they were not before the RO at the time of the last
prior final denial in July 2000. However, as they do not
tend to relate the veteran's tinnitus to service, they do not
bear directly and substantially on the matter under
consideration, and are not material. VA treatment record
notations that the veteran has subjective tinnitus are merely
cumulative of information of record in July 2000. April 2001
and April 2002 VA examination reports opine that it is less
likely than not that his tinnitus is related to service.
Hence, they are not so significant that they need to be
considered in order to fairly decide the merits of his claim
as they are against his claim.
The veteran's sister's statement is new as it was not
previously of record; however, it is not material as it talks
about the veteran's hearing loss and does not provide any
information regarding tinnitus.
Regarding the veteran's own opinion/assertions that he has
tinnitus related to service, such opinion is not competent
evidence, as he lacks medical expertise. See Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). While his statements that
he experienced tinnitus during service and regarding noise
exposure are credible, they are essentially cumulative of
information previously of record, do not provide a more
complete picture of the origin of tinnitus, and are not so
significant that they must be considered.
In sum, no item of evidence received subsequent to the RO's
July 2000 rating decision bears directly and substantially
upon the specific matter at hand, or is so significant that
it must be considered in order to fairly decide the merits of
the claim of service connection for tinnitus. In fact, to
the extent that competent evidence added to the record since
July 2000 addresses the matter of the etiology of the
veteran's tinnitus, it is counter to his claim. Accordingly,
the additional evidence received since July 2000 is not "new
and material evidence," and the claim of service connection
for tinnitus may not be reopened.
ORDER
The appeal to reopen a claim of service connection for
tinnitus is denied.
____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs